HAWSCT Confirms Election Contests Are Tough!

by Robert Thomas, InverseCondemnation, December 24, 2014

The statutory standards for an original jurisdiction action in the Hawaii Supreme Court challenging the outcome of an election are pretty rigorous. You've got to show acts or omissions that "could cause a difference in the election results." Haw. Rev. Stat. § 11-172. In other words, you must show that if you are right about the facts, the winner won't be the winner. Indeed, the bar is set pretty high just to survive a motion to dismiss, much less win, since the complaint itself must demonstrate "error, mistakes or irregularities that would change the outcome of the election" to avoid dismissal for failure to state a claim.

The Twombly heightened pleading standards applicable in the federal courts have not been adopted by Hawaii courts, at least in typical civil cases where the pleading bar is set pretty low. But in original jurisdiction election contests, the opposite may be true, and a plaintiff has perhaps a higher burden than Twombly, because she must plead "actual information or mistakes or errors sufficient to change the election result."

The Hawaii Supreme Court has required something more than a "fishing expedition," and that it's not enough that a sufficient number of votes are in play, with the hope the election challenge itself might turn up problems with enough votes to change the result. In other words, unlike your typical civil case, an election contest requires pleading with specificity and the plaintiff cannot rely on the discovery process to unearth the details.

In Waters v. Nago, No. SCEC-14-0001317 (Dec. 24, 2014), the Hawaii Supreme Court once again reaffirmed these principles. The court issued findings of fact and conclusions of law in an election contest challenging the results of the November 2014 vote for a spot on the Honolulu City Council, where a mere 41 votes separated the winner from the also-ran.

The challenger filed an original jurisdiction election contest with the Supreme Court alleging that something was afoot with either the way the "overage" votes were handled (where somehow, the number of ballots cast exceeds the number of ballots issued), or that up to 74 blank ballots could have been miscounted due to the margin of error for Hawaii's voting machines. 

The court rejected the arguments, concluding there was nothing of substance backing them up. In other words, the complaint itself was not supported with evidence, and only contained unsupported allegations (even when the court converted the motion to dismiss for failure to state a claim into a motion for summary judgment, and considered other evidence which the challenger submitted).

The plaintiff asserted that he tried to get the documents which might prove his case within the short statute of repose under Hawaii law (20 days for general elections), but that he could not. He also introduced a 1998 audit of voting machines revealing a .2% margin of error, which if applicable here, would mean that up to 74 of the 4,455 blank ballots may have actually been votes cast for him. "And 74 maybe votes > 41, therefore, I get a recount," argued the challenger (we are paraphrasing, of course).

But to the court, none of this was enough to show "how the sought-after documents or information demonstrates fraud, irregularities, or mistakes sufficient to change the election results." Slip op. at 17. You can't get to a win in an election contest by showing there might be something there, you've got to show there is something there, and that something is enough to change the outcome. A challenger can't complain that documents he doesn't have might show he would win, he has to show that he might win. And the 1998 audit showing the margin of error might net the challenger more than 41 votes? Different machines and a different vendor, therefore irrelevant, held the court.

The court's decision is no real surprise, however, because under Hawaii law the statutory standards for election contests are so exacting. In setting the bar this high, the legislature appears to have chosen certainty and repose over accuracy. So even in what appears to be a case meriting at least a recount, an election challenge is very tough. This isn't likely to change unless Hawaii's voting patterns shift significantly, because there's little chance a one-party legislature filled with incumbents and party insiders will even consider amending the statutes to make it any easier for a loser to challenge an election result. Those who win elections (and election contests) under this system like it just the way it is. 

PDF: Waters v. Nago, No. SCEC-14-0001317 (Haw. Dec. 24, 2014)